Save the Plastic Bag Coalition v.
Filed 6/25/13 Save the Plastic Bag Coalition v. County of Marin CA1/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
SAVE THE
PLASTIC BAG COALITION,
Plaintiff and Appellant,
v.
COUNTY OF
MARIN et al.,
Defendants and Respondents.
A133868
(Marin
County
Super. Ct.
No. CV1100996)
County
of Marin (Marin
County or the county) enacted an
ordinance intended to encourage the use of reusable bags by banning single-use
plastic bags and imposing a fee on single-use paper bags. The ordinance applies to roughly 40 retailers
in unincorporated parts of the county.
The county determined the ordinance was categorically exempt from the
(CEQA) (Pub. Resources Code, § 21000 et seq.) because it was a regulatory
action designed to assure the maintenance, restoration, enhancement, or
protection of natural resources and the environment.
(plaintiff) sought a writ of mandate directing the county to set aside its
ordinance for failure to comply with CEQA.
On appeal from a judgment denying the writ, plaintiff raises various
arguments supporting its view that the challenged ordinance is not
categorically exempt from CEQA. We
affirm the judgment.
Factual and
Procedural Background
The
Marin
County Board of Supervisors (board) enacted Ordinance No. 3553 (ordinance)
in January 2011. Effective January 1, 2012, the ordinance
prohibits certain retail establishments from dispensing single-use plastic bags
and requires retailers to impose a reasonable charge of not less than five
cents for dispensing a single-use, recycled-content paper bag.
subds. (a) & (b)(2)(D).) Retail
customers who participate in certain government-sponsored food programs are
exempt from the charge for single-use paper bags. (Id., § 5.46.020, subd.
(b)(2)(C).) The ordinance applies only
in unincorporated portions of the county.
(Id.,
§ 5.46.010, subd. (f).) As a
general matter, grocery stores, pharmacies, convenience food stores, and other
stores that sell food or perishable items are subject to the ordinance,
although restaurants and similar establishments that sell prepared foods are
excluded from the law’s scope. (
The ordinance establishes the criteria for a bag to qualify as reusable
and specifies that reusable bags may not contain lead or other heavy metals in
toxic amounts. (Id., § 5.46.030.) A
store must make reusable bags available for purchase. (Id.,
§ 5.46.020, subd. (b)(1).)
The
county’s effort to stem consumers’ reliance on single-use bags began years
before the county passed the ordinance.
In 2007, a Marin County task force identified plastic bags as a major
solid waste issue. The task force
reported that plastic bags have no recycling markets, take 500 years to
decompose, and pose a hazard to the environment. In the period from 2007 through 2010, the
county held meetings to formulate a strategy to address the use of single-use
bags. The “Marin Bag Ban Working Groupâ€
convened meetings in 2009 and 2010 to draft a local ordinance. The working group included representatives
from government, environmental organizations, retail stores, and suppliers of
bags.
In
December 2010, the county’s agricultural commissioner sent the board an
analysis of a proposed ordinance regulating the provision of single-use
carryout bags. As set forth in the
commissioner’s report, single-use plastic and paper carryout bags have adverse
environmental impacts throughout the state.
Litter cleanup alone requires public agencies to spend substantial sums
to dispose of discarded single-use bags.
In addition, a substantial amount of private and public money is spent
removing plastic and paper bags from recycling equipment, storm water systems,
streets, sidewalks, and waterways, including the San Francisco Bay. According to the commissioner’s analysis, the
ordinance would apply to approximately 40 retail stores in unincorporated areas
of Marin County. If a similar ordinance
were to be adopted throughout the county by all incorporated cities and towns,
the law would apply to a total of 440 retailers.
As
set forth in the agricultural commissioner’s analysis, county residents use up
to 138 million single-use bags each year that end up in the waste stream. Bags are sometimes baled together and “sent
to distant lands for handling—often to be burned or buried.†According to one estimate, California
residents pay up to $200 per household annually in taxes and fees to clean up
waste associated with single-use bags.
The agricultural commissioner stated the ordinance would provide an
incentive for consumers to shift from single-use bags to reusable bags. According to the analysis, a shift to
reusable bags would conserve resources, reduce the amount of greenhouse gas
emissions associated with the production of single-use bags, reduce waste and
marine pollution, protect water resources and water quality, and enhance the
quality of life for county residents, visitors, and wildlife.
At
the time the county was considering the ordinance, state law prohibited local
jurisdictions from imposing a fee for single-use plastic bags. (See former § 42254, subd. (b)(2), as
added by Stats. 2006, ch. 845, § 2.) In
light of this constraint, and in order to encourage consumers to bring reusable
bags with them to stores, the county proposed banning single-use plastic
bags. To discourage consumers from
simply switching from plastic to paper, the county also proposed imposing a fee
for single-use paper bags. The
agricultural commissioner’s analysis recognized that, while paper bags are
recycled at a much higher rate than plastic bags, paper bags generate
“significantly larger [greenhouse gas] emissions and result in greater
atmospheric acidification, water consumption and ozone production than plastic
bags.†The analysis recited the
experience in other parts of the nation and world supporting the conclusion
that mandatory charges on single-use bags result in significant declines in the
use and consumption of bags. Among other
things, the commissioner relied on a master environmental assessment prepared
by Green Cities California in which it was reported that a ban on single-use
plastic bags combined with a five-cent charge for single-use paper bags in the
District of Columbia had caused as many as two-thirds of consumers to shift
from single-use to reusable bags. After
the District of Columbia law went into effect, there was a 50 percent decrease
in the number of plastic bags found during an annual cleanup of the Anacostia
River watershed.
The
agricultural commissioner concluded that “[b]y pursuing a ban on plastic with a
mandatory charge on paper, the County can successfully rebut the plastic
industry’s challenge that simply banning plastic would shift people from one
bad environmental impact (plastic) to another one (paper).†The commissioner also stated that the
combination of the plastic bag ban with the charge on paper bags would allow
the county to claim a categorical exemption under CEQA “by demonstrating and
achieving a result that is environmentally superior: moving people to reusable bags and reducing
waste from all single-use products.†The
analysis did not specify the statute, regulation, or other basis on which a
categorical exemption might be claimed.
After
conducting a first reading of the ordinance at a public meeting in December
2010, the board set the matter for a second reading in early January 2011, to
be combined with a hearing on the merits of the ordinance. The county published notice of the hearing
and allowed the public to send written comments to the board in advance of the
hearing.
Plaintiff
submitted a lengthy set of objections to the board expressing its opposition to
the proposed ordinance, along with over 90 documents that were either cited in
the objections or were purportedly supportive of plaintiff’s position. Plaintiff describes itself as a coalition of
companies involved in the manufacture or distribution of plastic bags. The purpose of the coalition is to respond to
“environmental myths, exaggerations, and misinformation about plastic
bags.†Fundamentally, plaintiff objected
to the adoption of the proposed ordinance without the preparation or adoption
of an environmental impact report (EIR).
Plaintiff argued that banning plastic bags may have significant negative
impacts on the environment because the alternatives—either paper bags or
reusable bags—are worse for the environment.
Among other things, plaintiff argued that banning plastic bags would not
reduce the cost of litter collection, because there would still be a need to
remove litter from streets, parks, and waterways even if there were no plastic
bags in the litter stream. Plaintiff
also stated that the plastic bag recycling rate had increased significantly
since state law required stores to install plastic bag recycling bins. According to plaintiff, it is a “good thingâ€
that plastic bags take many years to biodegrade, reasoning that alternatives
such as paper bags emit significant amounts of greenhouse gases when they
biodegrade in landfills. Additionally,
Plaintiff disputed the claim that large numbers of seabirds and other sea
animals are killed by plastic bags, and also challenged the assertion that
there is a vast plastic garbage patch in the Pacific Ocean.
The
thrust of plaintiff’s objections focused on so-called “life cycle†assessments
that evaluate the overall environmental impact of plastic bags compared to
paper bags. Life cycle assessments
evaluate the local and global environmental impacts of a product’s manufacture
and use from “cradle to graveâ€â€”i.e., from extraction of raw materials to final
disposal of the product. For example, in
the case of paper bag production and use, the assessments examine things such
as forest decline, water consumed during production, atmospheric acidification
from paper manufacturing, contribution to landfills, and generation of
greenhouse gases. Plaintiff summarized
four specific life cycle assessments that purportedly show paper bags are
significantly more damaging to the environment than plastic bags. One such assessment concluded that papers
bags have more adverse environmental impacts than plastic bags in that they use
more energy and water, emit more greenhouse gases, produce more atmospheric
acidification that results in acid rain, cause more ground level ozone to be
formed, and generate more solid waste.
Plaintiff also argued that the life cycle impacts of reusable bags are
worse for the environment than the life cycle impacts of plastic bags,
contending that reusable bags consume more raw materials and will likely be
discarded in a landfill long before they have been used enough times to offset
their greater negative life cycle impacts.
Plaintiff
disputed the agricultural commissioner’s conclusion that a five-cent fee for
paper bags would provide sufficient incentive to encourage consumers to switch
to reusable bags. As for the District of
Columbia’s favorable experience with a five-cent fee for paper bags, plaintiff
suggested the results there were influenced by a massive reusable bag giveaway
program. Plaintiff further argued it was
too soon to know with certainty the long-term impact of the District of
Columbia law. Citing an EIR completed by
Los Angeles County, plaintiff claimed the EIR established that a 10-cent fee
for paper bags combined with a plastic bag ban would not be sufficient to
prevent significant negative environmental impacts. Plaintiff did not provide the Los Angeles
County EIR to the board but instead recited a web address at which the EIR
could be accessed.
Observing
that the agricultural commissioner had referred to a categorical exemption from
CEQA, plaintiff noted it was “not clear†whether the county intended to rely on
a categorical exemption. Plaintiff proceeded
to address categorical exemptions for projects undertaken to protect a natural
resource or the environment, arguing that the county could not rely on a
categorical exemption because plaintiff had made “a fair argument that the
proposed ordinance may cause significant environmental impacts.â€
The
board continued the hearing on the merits of the ordinance until January 25,
2011, following the receipt of plaintiff’s lengthy objections to the proposed
legislation. In a letter to the board
dated January 25, 2011, the county counsel’s office recommended proceeding with
the second reading of the ordinance and a public hearing on the merits of the
proposed legislation. County counsel
conducted its review of the matter at the request of the board in order to address
plaintiff’s contention that the county had failed to comply with CEQA. County counsel stated: “In our opinion, exempting the ordinance from
CEQA review based upon the categorical exemptions contained in CEQA Guidelines
15307 and 15308[
title="">[3]]
(the so-called Class 7 and 8 exemptions), remains valid. There is substantial evidence to support your
Board’s conclusion the ordinance is a regulatory measure designed to protect
both natural resources and the environment generally. Prohibiting the distribution of single use
plastic carry-out bags at many retailers will undoubtedly have a positive
environmental impact so long as customers do not merely shift from single-use
plastic to single-use paper carry-out bags which also have adverse
environmental impacts. And we believe
the available evidence still shows that even at a 5 cent charge for paper bags,
enough customers will convert to truly reuseable [sic] bags that the net effect
of the ordinance will be to reduce the use of both plastic and paper single-use
carry-out bags from their current levels in unincorporated Marin County.â€
Following
the scheduled public hearing, the board adopted the ordinance. On March 2, 2011, the county filed a notice
of exemption reflecting that the ordinance is exempt from CEQA under the
categorical exemptions set forth in Guidelines sections 15307 and 15308.
Plaintiff
filed a petition for a writ of mandate in the Marin County Superior Court,
naming as respondents both the county and the Marin County Department of
Agriculture, Weights & Measures.
Plaintiff sought a peremptory writ of mandate directing the county to
set aside the ordinance for failure to comply with CEQA. Plaintiff also sought a declaration that the
ordinance is preempted by state law.
The
trial court entered an order denying the writ of mandate and declaratory relief
requested by plaintiff. The court found
there is substantial evidence to support the county’s action in relying on the
categorical exemptions contained in Guidelines sections 15307 and 15308. The court noted: “While a clever lawyer can argue that it is a
benefit that plastic bags take 500 years to decompose, it was reasonable for
the County to conclude that it [is] more beneficial for the environment to
avoid the litter and pollution from the plastic bag in the first instance, so
that this indestructible trash is not added to the landfill at all.â€
Plaintiff
appealed following entry of judgment in favor of the county. In its opening brief on appeal, plaintiff
clarifies that the appeal is limited to the denial of the writ of mandate
sought on the ground the county violated CEQA.
Plaintiff does not appeal from the denial of declaratory relief
concerning whether state law preempts the ordinance.
Discussion
1. CEQA Principles
It
is state policy in California that “the long-term protection of the environment
. . . shall be the guiding criterion in public decisions.†(§ 21001, subd. (d).) To achieve this goal, CEQA and the Guidelines
implementing it provide for a three-step process. “In the first step, the public agency must
determine whether the proposed development is a ‘project,’ that is, ‘an
activity which may cause either a direct physical change in the environment, or
a reasonably foreseeable indirect physical change in the environment’ undertaken,
supported, or approved by a public agency.â€
(Tomlinson v. County of Alameda (2012)
54 Cal.4th 281, 286.) In this case,
Marin County concedes the ordinance qualifies as a project under CEQA.
If
the proposed activity is determined to be a project, the public agency must
proceed to the second step of the process, which considers whether the project
“is exempt from compliance with CEQA under either a statutory exemption
[citation] or a categorical exemption set forth in the regulations [citations]. A categorically exempt project is not subject
to CEQA, and no further environmental review is required. If the project is not exempt, the agency must
determine whether the project may have a significant effect on the
environment. If the agency decides the
project will not have such an effect, it must ‘adopt a negative declaration to
that effect.’ [Citations.] Otherwise, the agency must proceed to the
third step, which entails preparation of an environmental impact report before
approval of the project.†(
Cal.4th at p. 286.)
Because
the ordinance here constitutes a legislative or quasi-legislative action, our
inquiry on appeal extends only to whether the county prejudicially abused its
discretion. (Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho
Cordova (2007) 40 Cal.4th 412, 426.)
An agency abuses its discretion when it “has not proceeded in a manner
required by law or if the determination or decision is not supported by
substantial evidence.†(§ 21168.5
Our review is de novo in the sense that we perform the same function as
the trial court in reviewing the administrative record for legal error and
substantial evidence. (
Growth, Inc. v. City of Rancho Cordova, supra, at p. 427.) We review the agency’s action and not the
decision of the trial court. (
In
this case, the county determined the ordinance was categorically exempt from
CEQA. Although our review is still
governed by the general standards we have outlined, case law has clarified how
these standards are applied in categorical exemption cases. “A categorical exemption is based on a
finding by the Resources Agency that a class or category of projects does not
have a significant effect on the environment.
[Citations.] Thus an agency’s
finding that a particular proposed project comes within one of the exempt
classes necessarily includes an implied finding that the project has no
significant effect on the environment.
[Citation.] On review, an
agency’s categorical exemption determination will be affirmed if supported by
substantial evidence that the project fell within the exempt category of
projects.†(Davidon Homes v. City of San Jose (1997) 54 Cal.App.4th 106, 115.)
“In
categorical exemption cases, where the agency establishes that the project is
within an exempt class, the burden shifts to the party challenging the
exemption to show that the project is not exempt because it falls within one of
the exceptions listed in Guidelines section 15300.2. The most commonly raised exception is
subdivision (c) of section 15300.2, which provides that an activity which would
otherwise be categorically exempt is not exempt if there are ‘unusual circumstances’
which create a ‘reasonable possibility’ that the activity will have a
significant effect on the environment.â€
(Davidon Homes v. City of San
Jose, supra, 54 Cal.App.4th at p. 115.)
As relevant here, the “cumulative impact†exception in subdivision (b)
of Guidelines section 15300.2 provides that a public agency may not rely on a
categorical exemption “when the cumulative impact of successive projects of the
same type in the same place, over time is significant.â€
There
is a split of authority on the appropriate standard of review to apply to a
question of fact concerning whether an activity that would otherwise be
categorically exempt is subject to one of the three main exceptions contained in subdivisions (a)
through (c) of Guidelines section 15300.2.
(1 Kostka & Zischke, Practice Under the Cal. Environmental Quality
Act (Cont.Ed.Bar 2013) § 5.127, pp. 298-302.) “ ‘Some courts have relied on cases
involving review of a negative declaration, holding that a finding of
categorical exemption cannot be sustained if there is a “fair argument†based
on substantial evidence that the project will have significant environmental
impacts, even where the agency is presented with substantial evidence to the
contrary. [Citation.] Other courts apply an ordinary substantial
evidence test . . . , deferring to the express or implied
findings of the local agency that has found a categorical exemption
applicable.’ †(
186 Cal.App.4th 830, 856.) As we
explain, post, it is unnecessary for
us to take a position on this split of authority because it would not alter the
outcome of this appeal.
Manhattan Beach
At
the outset, we consider plaintiff’s contention that the outcome of this case is
controlled by the California Supreme Court’s decision in Save the Plastic Bag Coalition v. City of Manhattan Beach (2011) 52
Cal.4th 155 (Manhattan Beach). Because the case addresses the appropriate
level of environmental review under CEQA for a plastic bag ban, it is plainly
relevant to our analysis. We also point
out something obvious from the caption of the case—the plaintiff in
plaintiff here. However,
different CEQA process from the one pursued by the county. In Manhattan
Beach, the city conducted an initial study followed by a negative
declaration. (Id. at pp. 161-162.) By
contrast, in this case Marin County determined the ordinance was exempt from
CEQA and therefore did not proceed with an initial study. Nevertheless, even though
process distinct from the one before us, the decision contains useful guidance
in assessing plaintiff’s claims that the ordinance will have significant
environmental impacts.
In
Manhattan Beach, the city proposed an
ordinance banning the use of plastic bags at the point of sale. (Manhattan
Beach, supra, 52 Cal.4th at p. 160.)
The proposed ordinance included a finding that it was exempt from CEQA
under the “common-sense†exemption (Guidelines, § 15061, subd. (b)(3)) and
as a regulatory program designed to protect the environment (Guidelines
one of the exemptions relied upon by the county in this case. (Manhattan
Beach, supra, 52 Cal.4th at p. 160.)
Just as the plaintiff did in this case, it threatened to sue the city
unless it performed a full CEQA review.
The city then conducted an initial study, which acknowledged that a
switch from plastic to paper bags might have some negative environmental
consequences but concluded the impacts would be less than significant. (Ibid.)
The
initial study recited that the population of the city was 33,852, and that only
217 retail establishments would be affected by the plastic bag ban. (Manhattan
Beach, supra, 52 Cal.4th at p. 161.)
Although the proposed ordinance did not include a fee for paper bags,
the study reached the conclusion that paper bags would not replace plastic bags
on a one-to-one ratio because of the larger capacity of paper bags, and in any
event some percentage of plastic bags would be replaced by reusable bags. (Ibid.) The study also noted that paper bags are
recycled at a much higher rate than plastic bags, thus limiting the impact on
landfill capacity. (Id. at p. 162.) The study
recommended adopting a negative declaration finding the proposed ordinance
would not have a significant effect on the environment. (Ibid.)
Plaintiff
objected and relied on life cycle studies showing that paper bags have a
greater environmental impact than plastic bags.
(Manhattan Beach, supra, 52
Cal.4th at p. 162.) The city adopted a
negative declaration and enacted the ordinance.
(Id. at p. 164.) Plaintiff sued the city for failure to comply
with CEQA and prepare an EIR. (
The
Supreme Court in Manhattan Beach considered
whether plaintiff had established a “fair argument the project may have
significant adverse effects,†thus requiring the city to prepare an EIR.
Beach, supra, 52 Cal.4th at p. 171.)
The court focused on the distinction between local impacts and impacts in areas outside the public agency’s
geographical boundaries. (
consider any significant effect on the environment in the area affected by the
project.
agencies must consider effects a project will have beyond the boundaries of the
project area, it clarified that CEQA does not require an exhaustive analysis
“of all conceivable impacts a project may have in areas outside its
geographical boundaries.†(
environmental impacts without direct impact on the local agency’s geographical
area may be evaluated at a higher level of generality. (Id. at
pp. 173-174.)
In
considering the local and broader impacts of the city’s ban, the court stated
that the “only strictly local impacts of the ban appear to be those related to
the transportation of paper bags, and possibly their disposal.†(Manhattan
Beach, supra, 52 Cal.4th at p. 173.)
The impacts in areas outside the city were “both indirect and difficult
to predict.†(Id. at p. 174.) The court
held that the “city properly concluded that a ban on plastic bags in Manhattan
Beach would have only a miniscule contributive effect on the broader environmental
impacts detailed in the paper bag ‘life cycle’ studies relied on by
plaintiff. Given the size of the city’s
population (well under 40,000) and retail sector (under 220 establishments,
most of them small), the increase in paper bag production following a local
change from plastic to paper bags can only be described as insubstantial.†(Ibid.) The court concluded there was no substantial
evidence to support a fair argument the plastic bag ordinance might
significantly affect the environment, and consequently the city was not
required to prepare an EIR. (
As
relevant for our purposes, the court in Manhattan
Beach focused on the “actual scale of the environmental impacts that might
follow from increased paper bag use in Manhattan Beach, instead of comparing
the global impacts of paper and plastic bags . . . .†(Manhattan
Beach, supra, 52 Cal.4th at p. 172.)
Further, while acknowledging that “CEQA review includes the impacts a
project may have in areas outside the boundaries of the project itself,†the
court urged caution in considering broader and often uncertain impacts,
stating: “[T]his case serves as a
cautionary example of overreliance on generic studies of ‘life cycle’ impacts
associated with a particular product.
Such studies, when properly conducted, may well be a useful guide for
the decision maker when a project entails substantial production or consumption
of the product. When, however, increased
use of the product is an indirect and uncertain consequence, and especially
when the scale of the project is such that the increase is plainly
insignificant, the product ‘life cycle’ must be kept in proper perspective and
not allowed to swamp the evaluation of actual impacts attributable to the
project at hand.†(Id. at p. 175.) The court
urged “common sense†in the CEQA domain, even when the “common sense†exemption
(Guidelines, § 15061, subd. (b)(3)) is not specifically at issue. (Manhattan
Beach, supra, at p. 175.) The court
concluded by stating that “common sense leads us to the conclusion that the
environmental impacts discernible from the ‘life cycles’ of plastic and paper
bags are not significantly implicated by a plastic bag ban in Manhattan
Beach.†(Ibid.)
In
light of our summary of the case, one might question why plaintiff would rely
on Manhattan Beach or even suggest
the analysis is supportive of its position.
Plaintiff seizes upon two sentences in the opinion to argue that a
governmental body larger than Manhattan Beach, such as Marin County, must
prepare an EIR. First, plaintiff cites
the statement that “the analysis would be different for a ban on plastic bags
by a larger governmental body, which might precipitate a significant increase
in paper bag consumption.†(
174.) Second, plaintiff relies on a
footnote in which the court stated as follows:
“While cumulative impacts should not be allowed to escape review when
they arise from a series of small-scale projects, that prospect does not appear
in this case. According to plaintiff,
the movement to ban plastic bags is a broad one, active at levels of government
where an appropriately comprehensive environmental review will be
required.†(Id. at p. 174, fn. 10.) From
these isolated passages, plaintiff draws the conclusion that an EIR is required
for any plastic bag ban in (1) a city or county larger than Manhattan Beach,
and (2) in smaller cities and counties based on cumulative impacts. Plaintiff then claims the population of Marin
County in 2010 was 252,409, over seven times larger than Manhattan Beach.
The
passages in Manhattan Beach upon
which plaintiff relies do not support a conclusion that Marin County abused its
discretion by relying on a categorical exemption from CEQA. The court simply recognized that there may be
circumstances when more comprehensive environmental review will be required if
it can be shown that a plastic bag ban will result in a significant increase in
paper bag use. That is simply not the
case here. Marin County’s ordinance
applies to roughly 40 stores, compared to over 200 stores affected by Manhattan
Beach’s ordinance. If the broader
impacts of increased paper bag use could be described as insubstantial in
charge for paper bags—it is even more trivial in this case, which involves
significantly fewer retailers, each of whom will charge fees for papers bags
and thereby increase the incentive for consumers to bring reusable bags when
shopping. Further, because our review of
the facts is limited to the record before the public agency, we may not
properly consider the population of Marin County, which is not part of the
administrative record. (See
Superior Court (2009) 45 Cal.4th 963, 977.)
In any event, the relevant population figure for purposes of comparison
is the population of the unincorporated areas of the county, where the
ordinance applies. Given that the number
of affected stores in unincorporated areas is substantially less than the
number of stores that would be affected if the ordinance were applied
county-wide (40 as compared to 440), it is also reasonable to assume the
population in unincorporated areas is substantially less than the overall
population of the county. Thus, the
analysis in Manhattan Beach does not
compel the conclusion that Marin County was required to perform a more
comprehensive CEQA review. If anything,
a comparative analysis involving stores and population figures in Manhattan
Beach and the unincorporated parts of Marin County reinforces the conclusion
that, just as in Manhattan Beach, the
environmental impacts of the ordinance are insignificant.
Plaintiff
also argues that the county’s reliance on a categorical exemption flies in the
face of Manhattan Beach. Citing the California Natural Resource
Agency’s website, plaintiff contends that categorical exemptions apply only to
Legislature has provided a blanket exemption
from CEQA. According to plaintiff, if
comprehensive environmental review “will be required†for some plastic bag bans
(Manhattan Beach, supra, 52 Cal.4th
at p. 174, fn. 10), then it cannot be the case that there is a blanket
exemption for plastic bag bans.
The
holding and analysis in Manhattan Beach does
not preclude a public agency from relying on a categorical exemption for a
plastic bag ban. The authority plaintiff
cites for the proposition that categorical exemptions are “blanket†exemptions
actually refers to statutory exemptions. There is a critical difference between
statutory and categorical exemptions.
“[S]tatutory exemptions are absolute, which is to say that the exemption
applies if the project fits within its terms.
Categorical exemptions, on the other hand, are subject to exceptions
that defeat the use of the exemption and the agency considers the possible
application of an exception in the exemption determination.†(Great
Oaks Water Co. v. Santa Clara Valley Water Dist. (2009) 170 Cal.App.4th
956, 966, fn. 8; see also 1 Kostka & Zischke, Practice under the Cal.
Environmental Quality Act, supra, § 5.3,
pp. 194-195.)
We
do not suggest there is a blanket exemption from CEQA for plastic bag
bans. A categorical exemption
upon the unique facts and circumstances presented. Nothing in Manhattan Beach precludes such a result. Indeed, the court in Manhattan Beach stated that an alternative to conducting an initial
study would have been to determine the project is exempt from CEQA, an
alternative that Manhattan Beach abandoned when threatened with
litigation. (Manhattan Beach, supra, 52 Cal.4th at p. 171, fn. 8.) If the Supreme Court had intended to preclude
public agencies from relying on a categorical exemption from CEQA when
considering plastic bag bans, it would not have suggested the exemption process
as an alternative to conducting an initial study.
3. County as a Regulatory Agency for Purposes of Categorical Exemptions
Plaintiff
argues that the categorical exemptions relied upon by the county are
inapplicable because they only apply to regulatory agencies implementing
regulations authorized by a preexisting state law or ordinance.
Before
considering the merits of plaintiff’s contention, we first address the county’s
argument that plaintiff failed to exhaust its administrative remedies with
respect to this contention. There
appears to be no dispute that plaintiff failed to raise this argument in its
lengthy objections submitted to the board.
The question is whether the exhaustion-of-administrative-remedies
requirement applies under the circumstances presented here.
The
Supreme Court addressed the applicability of the requirement to categorical
exemption cases in Tomlinson v. County of
Alameda, supra, 54 Cal.4th 281. The
court held “that the exhaustion-of-administrative-remedies requirement set
forth in subdivision (a) of section 21177 applies to a public agency’s decision
that a proposed project is categorically exempt from CEQA compliance
the ground for its exemption determination, and that determination is
preceded by public hearings at which members of the public had the opportunity
to raise any concerns or objections to the proposed project.†(Id.
at p. 291, italics added.)
Here,
the county’s agricultural commissioner indicated it would be appropriate to
seek a categorical exemption based upon the fact the result of the ordinance is
“environmentally superior.†The
commissioner’s analysis did not specify the regulatory or other basis upon
which a categorical exemption might be claimed.
It was not until the day of the continued public hearing that county
counsel identified the basis for the claimed exemptions—sections 15307 and
15308 of the Guidelines. This belated
identification of the grounds for the exemption does not qualify as adequate
notice sufficient to permit interested parties to meaningfully address the
basis for the exemptions. Even assuming
this belated notice would suffice for purposes of requiring a member of the
public to exhaust administrative remedies, it is unclear whether county
counsel’s letter was even made public before the hearing. Furthermore, it is irrelevant that plaintiff
actually referred to the two exemptions relied upon by the county in its
objections. Plaintiff could not be
expected to raise all possible arguments concerning the applicability of a
categorical exemption when it was unclear which exemption the county intended
to claim. Thus, we conclude plaintiff
was not required to exhaust administrative remedies with respect to this
contention.
Turning
to the merits of plaintiff’s argument, the contention is based on the language
of the exemptions in sections 15307 and 15308 of the Guidelines (referred to as
“Class 7†and “Class 8†exemptions), which establish an exemption from CEQA for
“actions taken by regulatory agencies as authorized by state law or local
ordinance†either “to assure the maintenance, restoration, or enhancement of a
natural resource†in the case of a Class 7 exemption or “to assure the
maintenance, restoration, enhancement, or protection of the environment†in the
case of a Class 8 exemption.
name="_ftnref6" title="">[6]
Plaintiff
relies upon the general rule that “[e]xemption categories are not to be
expanded beyond the reasonable scope of their statutory language.†(Mountain
Lion Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 125.) Without citation to authority, plaintiff
claims that the Class 7 and 8 exemptions are based on a “three-level hierarchyâ€
divided between legislative, regulatory, and ministerial actions. Plaintiff then argues, again without citation
to authority, that legislative actions, such as the enactment of the ordinance,
are never exempt from CEQA under the Class 7 and 8 exemptions, which apply only
to regulatory agencies. In reliance on
Cal.App.4th 468 (Magan), plaintiff
argues that the purpose of the regulatory exemptions is to avoid the need for
regulatory agencies to repeat environmental review that has already been done
at the legislative level.
We
are aware of no support for plaintiff’s claimed distinction between legislative
and regulatory actions in the context of exemptions from CEQA. There is, however, a distinction between
ministerial actions and discretionary actions.
Ministerial actions of public agencies are exempt from CEQA. (Guidelines, § 15060, subd.
(c)(1).) Discretionary actions by public
agencies may be subject to CEQA. (Ibid.) The county readily concedes that enactment of
the ordinance involved the “exercise of discretionary powers by a public
agency.†(Ibid.) Although ordinances
are always “legislative†in character, they also may constitute
“regulations.†The authority for
counties to enact regulations is provided in section 7 of article 11 of the
California Constitution: “A county or
city may make or enforce within its limits all local police, sanitary, and
other ordinances and regulations not
in conflict with general laws.†(Italics
added.)
Plaintiff’s
reliance on Magan is puzzling because
the case does not support its position.
In Magan, the Kings County
Board of Supervisors enacted an ordinance regulating the application of sewage
sludge to agricultural property. (
470.) In setting limits on what types
and quantities of sewage sludge could be applied to agricultural property, the
ordinance relied on sewage sludge classifications established by federal
regulation. (Id. at pp. 471-472.) The
county determined the ordinance was categorically exempt from CEQA as “an
action taken by a regulatory agency for the protection of the environmentâ€
under Guidelines section 15308. (
the regulatory powers granted to the county.
(Ibid.) The appellate court upheld the categorical
exemption without considering whether the county was a “regulatory agencyâ€
within the meaning of section 15308 of the Guidelines. (Id.
at p. 477.)
Just
as in Magan, the county here
exercised the regulatory powers afforded to it by the California
Constitution. The ordinance constitutes
a regulation enacted for the purpose of protecting natural resources and the
environment. It is immaterial that Kings
County referred to certain federal regulations in its ordinance for purposes of
defining which limitations applied to which types of sewage sludge. The classifications established by federal
regulation did not empower the county to enact the ordinance. Rather, they were simply convenient
classifications to clarify how the county’s ordinance was to be applied. In one instance, Kings County recognized that
it could not prohibit the application of a certain type of sewage sludge
because federal law was to the contrary.
(Magan, supra, 105 Cal.App.4th
at p. 471.) That fact does not support a
conclusion that Kings County’s authority to implement regulations derived from
a specific authorization by the federal government. The situation is no different here, where the
county was constrained from imposing a fee for plastic bags because state law
prohibited it. Although the county was
bound by the prohibition, the state law prohibiting fees on plastic bags was
not the source of the county’s authority to enact the ordinance.
Plaintiff
contends the county is trying to create an enormous loophole in CEQA by
allowing cities and counties to adopt ordinances they deem to be “green†or
“environmentally protective†without conducting any form of CEQA analysis. We disagree.
In order to support a categorical exemption under CEQA, a public agency
must be able to marshal substantial evidence to support the conclusion that the
project fell within the exemption. (
Cal.App.4th at p. 115.) Even if a public
agency meets its initial burden to show the exemption is supported by
substantial evidence, it still has to defend against claims that the exemption
is subject to an exception. (
Thus, it is simply not the case that a city or county can circumvent
CEQA merely by characterizing its ordinances as environmentally friendly and
therefore exempt under the Class 7 or 8 categorical exemptions.
It
is particularly telling that plaintiff’s briefs appear to lack any mention of
whether the county satisfied its initial burden to establish that the claimed
exemptions are supported by substantial evidence in the record. We agree with the county’s observation that
“at no point has [plaintiff] attempted to argue that a regulation limiting the
distribution of single-use bags and plastic bags, and encouraging the use of
re-usable [sic] bags would not constitute an action to help ‘assure the
maintenance, restoration, enhancement, or protection of the
environment.’ †As the county
points out, plaintiff argues that plastic bags are not as pernicious as
sometimes claimed but does not dispute the fundamental point that the
environment would be enhanced without plastic and paper bag waste. Because plaintiff has not directly addressed
the issue of whether there is substantial evidence to support the Class 7 and 8
exemptions (before considering the exceptions to the exemptions), we will consider
the issue forfeited. In any event, we
agree with the trial court that the administrative record contains substantial
evidence to support the conclusion that the ordinance is an action that will
maintain, enhance, and protect natural resources as well as the environment
generally.
4. Paper Bag Fee: Mitigation
Measure or Part of Project Design?
Plaintiff
next contends the county may not consider the five-cent paper bag fee for
purposes of determining whether Class 7 and 8 categorical exemptions apply. Plaintiff relies on the principle that public
agencies cannot rely on mitigation measures to qualify for a categorical
exemption. (See Salmon Protection and Watershed Network v. County of Marin (2004)
125 Cal.App.4th 1098, 1107-1108; Azusa
Land Reclamation Co. v. Main San Gabriel Basin Watermaster (1997) 52
Cal.App.4th 1165, 1200.)
We
agree with the county that plaintiff failed to exhaust administrative remedies
with respect to this contention.
Plaintiff did not raise the issue in the set of objections submitted to
the county when the ordinance was under consideration. The argument does not depend upon the
specification of the categorical exemption relied upon by the county, and the
county’s agricultural commissioner stated that the ordinance was categorically
exempt from CEQA. Further, the five-cent
paper bag fee was plainly part of the proposed ordinance and encompassed within
the agricultural commissioner’s analysis of the ordinance’s effects. Plaintiff had an opportunity to address the
issue but did not. Under these
circumstances, the claim is barred as a result of the failure to exhaust
administrative remedies. (
Cal.App.4th at p. 855.)
Even
if were to conclude the claim is not barred, we would still reject it. In the cases relied upon by plaintiff, the
lead agency added measures to a
project to bring it within the ambit of a categorical exemption. (Salmon
Protection and Watershed Network v. County of Marin, supra, 125 Cal.App.4th
at p. 1107; Azusa Land Reclamation Co. v.
Main San Gabriel Basin Watermaster, supra, 52 Cal.App.4th at p. 1199.) Here, the county did not add mitigation
measures to a preexisting project in order to fit within a categorical
exemption. Rather, the ordinance is and
always has been an effort to wean consumers off of both types of single-use
bags. The paper bag fee was “
a proposed mitigation measure.†(Wollmer
v. City of Berkeley (2011) 193 Cal.App.4th 1329, 1353.)
5. Unusual Circumstances Exception
Plaintiff
claims the categorical exemptions relied upon by the county are inapplicable
because there are “unusual circumstances†in this case. The unusual circumstances exception provides: “A categorical exemption shall not be used
for an activity where there is a reasonable possibility that the activity will
have a significant effect on the environment due to unusual
circumstances.†(Guidelines,
§ 15300.2, subd. (c).)
As
noted previously, there is a split of authority regarding the standard of
review governing a factual question as to whether the unusual circumstances
exception applies. (1 Kostka and
Zischke, Practice under the Cal. Environmental Quality Act,
conclude that plaintiff’s claim fails even under the fair argument standard,
which affords less deference to the agency’s determination than the ordinary
substantial evidence test that some courts employ. (Hines
v. California Coastal Com., supra, 186 Cal.App.4th at p. 856.) Under the fair argument standard, “ ‘a
finding of categorical exemption cannot be sustained if there is a “fair
argument†based on substantial evidence that the project will have significant
environmental impacts, even where the agency is presented with substantial
evidence to the contrary.’ †(
Plaintiff
states it has produced substantial
evidence that paper and reusable bags may cause significant negative
environmental impacts. We disagree. In the section of its opening brief addressed
to this argument, the only specific impact plaintiff identifies is that the
ordinance “may have the unintended . . . effect [of] significantly
increasing greenhouse gas emissions.â€
The
evidence relied upon by plaintiff in this case is remarkably similar to the
evidence relied upon by plaintiff in Manhattan
Beach. Here, just as in
argument is that life cycle studies establish that paper bags are more
detrimental for the environment than plastic bags. The impacts plaintiff identifies are indirect
and primarily occur beyond the geographical area of the county. Indeed, plaintiff devotes just one small
section of its opening brief to “local impacts,†in which plaintiff lists a
series of questions or issues it feels should be addressed by the county before
adopting the ordinance. These issues
include, among others: “Whether the
county has a landfill that would be impacted by any increased paper bag
useâ€; “How trash is disposed of in the
countyâ€; and “What would be the likely impact of a campaign urging recycling
and reusable bag use.â€
The
issues and questions raised by plaintiff do not constitute substantial evidence
of a significant, local environmental impact.
In Magan, supra, 105
Cal.App.4th at pp. 476-477, the party challenging the ordinance raised a number
of concerns about the sewage sludge regulation, including that it would degrade
agricultural land. The challenger failed
to produce any evidence to support its claims.
(Id. at p. 477.) The court concluded there was no substantial
evidence to support an exception to the Class 8 exemption, reasoning that the
challenger’s “ ‘speculative concerns are too vague and imprecise for any meaningful
environmental assessment.’ †(
The same is true here, where plaintiff simply raises questions it is
unable to answer.
In
Manhattan Beach, the court stated
that the “only strictly local impacts of the [plastic bag] ban appear to be
those related to the transportation of paper bags, and possibly their
disposal.†(Manhattan Beach, supra, 52 Cal.4th at p. 173.) The court determined the local impacts were
minimal. (Ibid.) Here, in the absence
of any evidence to the contrary, we likewise conclude that any local effects
from a possible increase in paper bag use at 40 retailers would be
insignificant. Even if we were to accept
plaintiff’s argument that a five-cent paper bag fee is insufficient to deter
some portion of consumers from switching from plastic bags to paper bags, the
overall impact on local landfills and transportation networks would still be
insubstantial.
As
for the broader, global impacts that might follow from increased paper bag use
at the 40 retailers affected by the ordinance, it is plain that any increased
greenhouse gas emissions or similar, broader environmental consequences
resulting from the ordinance would be comparatively trivial.
has not put forth a fair argument based on substantial evidence that the
ordinance will have significant environmental impacts.
6. Cumulative Effects Exception
Because
the county’s ordinance is intended as a model for the incorporated cities and
towns in the county, plaintiff contends the county’s environmental review
should have taken into account the law’s cumulative impact as if it were
adopted throughout the county. As
support for its cumulative impact argument, plaintiff relies on sections of the
Guidelines that apply when a public agency conducts an initial study. (See Guidelines, §§ 15065, subd.
(a)(3).) However, for purposes of a
categorical exemption, the relevant exception is found in Guidelines section
15300.2, subdivision (b), which provides that a public agency may not rely on a
categorical exemption “when the cumulative impact of successive projects of the
same type in the same place, over time is significant.†Appellant has not produced substantial
evidence to support a fair argument that the cumulative impacts would be significant.
“ ‘When
there is no substantial evidence of any individual potentially significant
effect by a project under review, the lead agency may reasonably conclude the
effects of the project will not be cumulatively considerable
. . . .’ †(
Cal.App.4th at p. 857.) In this case,
there is no substantial evidence that any individual effects of the ordinance
will be significant. There is no reason
to believe the cumulative impacts of the law, even if it were to be adopted by
all cities and towns in the county, would be significant. Our conclusion is compelled by plaintiff’s
utter failure to offer evidence of uniquely local impacts resulting from the
ordinance. Greenhouse gas emissions are
a global concern. The effect on such
emissions caused by a theoretical increase in paper bag use is relatively
trivial regardless of whether the ordinance applies to 40 stores in
unincorporated areas of the county or all 440 stores that would be affected if
the ordinance were applied throughout the county.
Categorical Exemption
Finally,
plaintiff asserts the county cannot rely on categorical exemptions from CEQA
because (1) the county failed to make written findings supporting the
categorical exemptions, and (2) the county did not assert the exemptions until
it was too late. Plaintiff is wrong on
both counts.
An
agency is not required to make a written determination supporting the
conclusion a project is categorically exempt.
(Robinson v. City and County of
San Francisco (2012) 208 Cal.App.4th 950, 961; see also 1 Kostka &
Zischke, Practice under the Cal. Environmental Quality Act,
not assert the exemptions until after approval of the ordinance, the contention
appears to be based on the fact the notice of exemption bears a date of
February 3, 2011, nine days after the county approved the ordinance. However, the notice of exemption also bears a
handwritten date signifying that the exemptions were “approved†on the date the
board adopted the ordinance. In
addition, the minutes of the board meeting at which the ordinance was adopted
reflect that deputy county counsel confirmed the validity of the claimed
categorical exemptions, as counsel had done in an earlier letter directed to
the board. Thus, as a factual matter,
plaintiff’s contention that the board did not assert the exemptions until after
it approved the ordinance is incorrect.
At
oral argument on appeal, plaintiff’s counsel contended that Marin County failed
to follow its own guidelines for claiming a categorical exemption.
Plaintiff first made this argument in its reply brief on appeal. Plaintiff also first addressed in its reply
brief the handwriting on the notice of exemption that refers to an approval,
suggesting that the notation must have referred to approval of the ordinance
and not approval of the exemption. As a
general matter, we decline to consider contentions raised for the first time in
a reply brief. “Obvious considerations of fairness in argument demand
that the appellant present all of his or her points in the opening brief.
To withhold a point until the closing brief would deprive the respondent of an
opportunity to answer it or require the effort and delay of an additional brief
by permission.†(9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 723,
p. 790; see also Granite Construction Co. v. American Motorists Ins. Co. (1994)
29 Cal.App.4th 658, 667, fn. 8.)
In any event, plaintiff’s belated arguments lack merit. Even if the
county did not comply with certain aspects of its own guidelines for asserting
a categorical exemption, plaintiff has failed to explain how any such
noncompliance with the county’s own guidelines constitutes a CEQA
violation. “CEQA does not require public agencies to follow any specific
procedure in approving activities that are exempt.†(1 Kostka &
Zischke, Practice under the Cal. Environmental Quality Act, supra, § 5.114,
p. 285.) Further, when a project is categorically exempt from CEQA, “a
project’s approval cannot be challenged on the ground that the agency’s
exemption determination was documented after the project was approved.†(Ibid.;
see also Robinson v. City and County of San Francisco, supra, 208
Cal.App.4th at pp. 960-963 [fact that planning department did not certify
categorical exemption until after permit issued was not a ground to invalidate
permit].)
The
judgment is affirmed. Respondents shall
recover their costs on appeal.
_________________________
McGuiness,
P. J.
We concur:
_________________________
Siggins, J.
_________________________
Jenkins, J.
Public Resources Code unless otherwise specified.
“paper bag†throughout this opinion, we intend to refer to single-use bags
unless otherwise specified.
